‘Sadly redundant,’ Advisor Imkong L Imchen critiques Article 371 (A)

May 6, 2023 23 Views No Comment

Morung Express News
Kohima | May 6

Since the agreement between the Assam and Nagaland Chief Ministers to go ahead with oil exploration in areas along the Assam and Nagaland border area, there have been oppositions from various quarters.

Against this backdrop, Imkong L Imchen, Advisor for IPR, Soil & Water Conservation today provided a critique on Article 371 (A) particularly referring to clause (IV) on ‘ownership and transfer of land and its resources.’

Addressing media personnel this afternoon at Kohima, Imchen said, “I am without any measure of hesitation, and in unequivocal terms saying that the very Constitutional provision of Article 371 (A) more particularly Claus IV has become ‘ipso-facto otiose’ and ‘sadly redundant’.”

He also highlighted the history of the Naga struggle for political emancipation and how Article 371 (A) was inserted in the Constitution of India by virtue of the 16 Point Agreement.

He observed that there are self-contradicting flaws and undefined paradoxes in the working and implementation of Article 371 (A). “No definition or meaning is given with regard to ownership and transfer of land and its resources in clause IV. This inherent flaw creates difficulties and confusion in the realm of interpretation,” Imchen stated.

He further observed that there is no specific legislative power accorded to the Nagaland Legislative Assembly (NLA) to legislate with respect to the special provision of Art 371 (A) Clause IV.

This unexplained ambiguity and flaw, he said gave rise to never ending confusion. “By all indications it is observed that Article 371 (A) does not per se (by itself) provide blanket protection and safeguards to its special provisions,” remarked Imchen.

Article 371 (A) is rather a protective provision but not an enabling provision of law in the Constitution, he said, adding “It is a saddening inherent flaw that the NLA was not accorded the power to make its own law in the enumerated clauses of Article 371 (A).”

Citing records, Imchen maintained that the then legal luminaries have all concurred that “land and its resources” as used in Article 371(A) Clause IV includes mines and minerals; accordingly the Nagaland Legislative Assembly (NLA) passed a resolution on July 26, 2010 to the effect that laws made by the Parliament on Petroleum and Natural Gas would be inapplicable in the State of Nagaland with retrospective effect, and subsequently invited Expressions of Interest (EOI) from companies to explore and exploit the 11 oil and gas fields it identified across 11 districts in the State.

However, he informed that this legislative initiative by the State Government was extinguished by the Government of India, Ministry of Home Affairs by its office memorandum dated May 23, 2012.

Referring to this as “palpably erroneous, incurable, not tenable, and manifestly arbitrary,” Imchen said nowhere in the record is seen that the Mines and Minerals (Regulation and Development) Act 1957, has been approved by the NLA as an applicable statutory law in the state from the date of statehood till date.

In view of the legislative process initiated by the state and the concurrent nullifying executive orders pronounced by the Union of India, Imchen said “the so called sacrosanct provisions of Article 371 (A) more particularly Clause IV which envisaged ownership and transfer of land and its resources has from the threshold to hitherto failed and has tormented down to non-est bottomless pit.”

To this end, when queried, Imchen suggested that the NLA members can unanimously adopt a resolution and propose for review of the provision; until then he viewed “we cannot do anything.”